What is an Expedited Hearing in Workers Compensation?
In civil cases a court will sometimes grant a request for an emergency hearing. Unfortunately there is no such thing as an emergency hearing in workers compensation in Virginia. But an injured worker may request and receive an expedited (quick) hearing in his or her workers compensation claim. This means scheduling a workers compensation hearing as soon as possible.
There are several reasons why an injured worker may want an expedited hearing: to get a medical procedure authorized and approved so that he or she can return to work; to get a medical bill paid so that collection agencies stop calling or so that the injured worker may return to that medical provider for treatment; and, to start getting paid while he or she is out of work so that his or her family has income to survive. These wage loss payments are called temporary total disability benefits.
Though an injured worker may be able to prove his or her entitlement to the workers compensation benefits sought, insurance companies know that the longer it takes to get a resolution the more leverage the insurance company has. An injured worker who has to wait months for a hearing on his or her claim for wage loss benefits is more likely to accept a lower workers compensation settlement offer so that he or she has some income to pay bills.
To minimize this leverage and to help the injured worker get help, an attorney may request an expedited hearing with the Virginia Workers’ Compensation Commission.
Expedite means to speed up the progress of something or to accomplish promptly. In Virginia workers comp that means getting a hearing in six weeks instead of having to wait three or four months. Even with an expedited hearing you will still have to wait a few weeks before you get to go in front of a deputy commissioner who will decide your case.
Few people are able to go several weeks without income or want to wait months for an answer on whether surgery that will take away their pain is approved. We understand that this causes stress and isn’t fair. Unfortunately it’s the current state of affairs. Each year thousands of claims, change-in-condition applications, employer’s applications for hearings, briefs, and motions are filed with the Commission. Its judges (called deputy commissioners) have to review the evidence, conduct hearings, and evaluate the evidence. In our experience the deputy commissioners do a good job of deciding cases. But this takes time. And the Commonwealth of Virginia has not hired more judges.
How Do I Get an Expedited Workers Compensation Hearing in Virginia?
Unfortunately it is difficult to obtain an expedited workers compensation hearing in Virginia.
Rule 2.3 of the Rules of the Virginia Workers Compensation Commission governs all expedited hearing requests. It states that an employee may seek an expedited hearing only if the Commission has determined the initial compensability of the accident. In other words the Commission must have entered an Award Order or you must have gone to a prior hearing and won to have a chance at getting a quicker workers compensation hearing.
In our experience the most common reason for an injured worker to file an expedited hearing request is to get wage loss benefits reinstated after the insurance company has filed an employer’s application to suspend benefits. We understand that it is difficult to go months without income while waiting for a hearing on the merits of the employer’s application and your current disability and work status.
The expedited hearing process starts by filing a written request with the Clerk of the Commission and sending a copy to the employer. The written request for an expedited hearing must include “evidence sufficient to find that, without an expedited proceeding to determine the merits of the dispute, the employee will be caused to suffer severe economic hardship.”
The Commission does not have a bright-line rule for what constitutes severe economic hardship. The rule states that it will be determined on a case by case basis. But there is information you should include in your expedited hearing request:
- A signed affidavit from you that states:
- Your current work status (employed or unemployed)
- Whether you are totally or partially disabled because of your compensable work injury (include your specific restrictions and which medical provider issued the restrictions)
- Whether anyone else in your home is employed
- What other sources of income you have available (income from spouse, dependents, or other family members; retirement funds; etc);
- Whether you have dependents whom rely on your wages, salary, and income for financial support;
- Whether you’ve received notice of foreclosure or eviction actions, or are living in a homeless shelter currently;
- Whether you’ve received notices of repossession of your personal vehicles, which are necessary for transportation to and from a job or to receive medical care;
- Whether your financial difficulties are due to a prior workers’ compensation decision or by an employer’s application for hearing; and,
- Any other statements or evidence demonstrating that you are unable to provide food, clothing, and shelter without an expedited hearing.
- Copies of all documents reference foreclosure, eviction, car repossession, or unpaid gas, water, and utilities bills.
- If you’re seeking an expedited hearing because the employer and its insurance company refuse to authorize a medical procedure, then your affidavit should include:
- A statement of your compensable work injuries;
- Whether your treating physician has stated that the procedure must be performed on an emergent basis and that failure to do so will threaten your life or cause an immediate and severe deterioration of your physical or mental condition;
- What medical treatment is in dispute;
- Whether the injured worker has other means to pay for the treatment, such as private health insurance coverage or Medicare or Medicaid.
Again, you must file supportive documentation with your request for an expedited hearing or it will get denied automatically.
What Happens After I Request an Expedited Workers Comp Hearing?
In Virginia the employer has 14 days to investigate the basis of the injured employee’s expedited hearing request and to respond. If the employer will not agree to an expedited hearing then it must state the basis for its inability to do so.
The Commission will schedule an informal conference 14 days after the request for an expedited hearing is filed. At that conference the Commission will attempt to narrow the disputed issues and clarify the reason for the expedited hearing request.
Within 7 days of the informal conference the Commission will make its decision on whether the request for expedited hearing is granted. If the request is granted then the Commission will schedule a hearing no less than 10 days and no more than 28 days after the expedited hearing was granted. No continuances will be granted and the parties must present evidence at the hearing.
The evidentiary record will close at the end of the hearing. The deputy commissioner hearing the case will issue a written decision within 14 days of the hearing. Either party may appeal the decision.
The workers comp system isn’t always fair. But you can help yourself and your family by hiring an experienced lawyer who cares about you and your family and who has the skill and resources to help you win. Call, text, or email Corey Pollard today for a free consultation. We can help you at every stage of the process, including the trial before a deputy commissioner.